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Sudan: Change The Law – Allow Victims Of Sexual Violence To Access Justice

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Three Sudanese women stand in a line, their faces are downcast.

In August 2013, while house hunting in Omdurman, Sudan, a 19-year-old pregnant and divorced Ethiopian woman was lured to an empty property and brutally gang-raped by a group of seven men, aged 19 to 22. Immediately following the attack, a police officer found the distraught victim, but didn’t file a formal complaint of rape because it was a public holiday and the police station was closed. Disturbingly, the rapists filmed the attack, which later surfaced via social media in January 2014. After learning of the film, the authorities ultimately arrested everyone involved, including the victim. Sudan’s Attorney General has – without legal basis – consistently blocked her from filing a rape complaint on the basis that she was under investigation for the criminal offense of offending public morality. At one point, she even faced a sentence of death by stoning for adultery, as the prosecutor debated her marital status before affirming that she was divorced.

This case highlights the overwhelming challenges women face in obtaining justice in Sudan for rape and sexual violence. Since being arrested, and despite being close to giving birth, the young woman has been held in police cells and, until recently, been consistently denied placement in a medical facility. As of 20 February, upon their confession, three of the perpetrators have been convicted of adultery, two of indecent acts, and one of distributing indecent material; their sentences consisted of lashes and fines. The seventh was freed due to insufficient evidence. The victim, however, was found guilty of committing indecent acts under section 151 of the Criminal Act, described as “whoever commits in a public place an act or conducts himself in an indecent manner or a manner contrary to public morality or wears an indecent or immoral uniform which causes annoyance to public feelings.” She has been sentenced to one month in prison and has been levied a hefty fine of 5000 Sudanese Pounds (approximately $900 USD). Her sentence has been suspended due to her pregnancy, and she has been placed under probation for six months.

Tragically, however, the victim’s troubles don’t end there. She is now being threatened by the court with immigration offenses, which carries a two-year prison term and subsequent deportation. Further troubling, the prosecutor has also filed criminal charges under section 146 referring to adultery, which criminalizes pregnant unmarried women. An appeal has been filed on the victim’s behalf against the new criminal charges, and the court hearing on her immigration charges has been postponed until April 2, 2014.

There is an urgent need for legal reform, especially to article 149 of the criminal code referring to rape. Under current laws, when a woman or girl reports she has been raped, she also exposes herself to possible prosecution. Effectively, a victim has to prove her own innocence by demonstrating that the encounter was non-consensual. If she fails to do so, she is liable to be prosecuted for adultery, also known as zina. The punishment for zina is 100 lashes if the woman is not married and execution by stoning if she is married. The law lacks clear guidelines on its interpretation and implementation, which allows judges wide discretion that is often unjust to victims seeking redress through the criminal justice system. In this case, even with filmed evidence of the rape, the victim was still found guilty of immoral acts. All these factors, combined with the traumatic stigma and fear of community reprisals, often deter women and girls from reporting crimes of sexual violence and make it very difficult for them to achieve justice even if they do.

Sudan is obligated in its interim Constitution of 2005 and under several international conventions to ensure that men and women are treated equally under the law and to prevent victims from being criminalized. Both the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights (ICCPR), to which Sudan is a party, echo these rights.